Summary
finding there was a material issue of fact regarding whether the plaintiff, who was a computer support technician correcting computer problems that were assigned to him through "trouble tickets," fell within the Work Requirement
Summary of this case from Difilippo v. Barclays Capital, Inc.Opinion
Civil Action No. 03-11177-DPW.
October 29, 2004
MEMORANDUM AND ORDER
Plaintiff Laurence S. Jackson, III brings this action against defendant McKesson Health Solutions LLC ("McKesson") under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. and the Massachusetts Minimum Wage Law ("MMWL"), Mass. Gen. Laws ch. 151, alleging that McKesson failed to pay him required overtime and retaliated against him in response to his complaints. McKesson now moves for summary judgment under Fed.R.Civ.P. 56.
I. BACKGROUND
A. Facts
On or about May 15, 2000, Jackson began work providing computer support in McKesson's Marlborough, Massachusetts office. The vast majority of his time was spent troubleshooting computer problems which would come to him in the form of "trouble tickets." Trouble tickets came from the various McKesson departments and office locations and related to hardware, software, and network connectivity problems. Although there is no dispute between the parties that Jackson generally did not consult with his supervisor about trouble tickets, Jackson contends that he did have to discuss certain issues with his supervisor before proceeding. In addition to trouble tickets, Jackson maintained the server hardware and was expected to diagnose hardware problems, as well as replace any malfunctioning equipment.
McKesson closed the Marlborough office on or about June 1, 2002 and transferred the plaintiff to the Newton, Massachusetts office where Bill White became his supervisor. In Newton, Jackson continued to spend the vast majority of his time on trouble tickets. For instance, Jackson would assist salespeople whose computers malfunctioned while serving clients. He would also confirm that portable computer devices were functioning properly before employees took them on business trips. In addition to meeting the computer needs of individual employees, McKesson also had to maintain its server. Server malfunctions were quite disruptive and occurred with some frequency while Jackson worked in Newton. The parties dispute the degree to which Jackson worked on server problems without permission.
In addition to these duties, Jackson also made suggestions to his supervisor in Newton, Mike Truax, and later to White regarding hardware purchases, with his superiors retaining final authority over such purchases. After becoming somewhat of an expert in a software program called PeopleWare, Jackson also suggested a cost-saving approach, recommending that McKesson use PeopleWare for a particular problem instead of investing in an expensive new program. He left, however, before anything happened on that score. Although trained in PeopleWare, Jackson contends that his responsibilities in that realm were limited to making sure the software was current and helping users access it, as well as troubleshooting problems with printing and ensuring the system was backed-up.
There is a dispute about the degree to which Jackson handled software problems. Jackson claims he only worked on hardware issues, and resists any implication by McKesson that he addressed software problems. (See Pl.'s Statement of Disputed Facts, at ¶ 22b. (contending "that all issues handled by Jackson were hardware related as software issues were elevated to other technicians."); see also id. at ¶ 33a.viii. ("As for software problems, Jackson would only make sure that software was installed properly and that users did not delete files that they needed or did not install software that they shouldn't have, which could corrupt the software.")). Nevertheless, Jackson does not dispute that he "troubleshot specific problems concerning . . . graphics software." (Def.'s Statement of Material Facts, at ¶ 10; Pl.s Statement of Disputed Facts, at ¶ 10).
Jackson's responsibilities at one time or another also included the storage of hardware and maintenance of the inventory room. Jackson also claims he kept the lab and server rooms clean, as well as built, unpacked, and installed computers. In addition, Jackson on occasion ordered software for McKesson employees after determining whether the company had sufficient licenses for the software. White claims he assigned to Jackson the responsibility of setting up the computers and cables in a new training room at McKesson's Marlborough office, adding that he gave Jackson a great deal of discretion in researching and implementing plans for the room.
Overall, the parties present, with a result-oriented lack of nuance, divergent portrayals of the creativity and overall level of skill involved in Jackson's job. For instance, McKesson points out that Jackson himself stated he troubleshot problems by thinking "outside the box," thereby demonstrating unique ability. According to Jackson, however, such creativity was limited to "looking up hardware information on the Web and in manuals." And while McKesson takes Jackson's statements as contending that his ability was second only to two senior systems administrators, Jackson claims that the comparison was only in regard to a particular password-related computer problem. In addition, the degree to which Jackson was required to use tools and perform manual labor — as well as the level of autonomy he enjoyed in implementing and completing projects, such as an assignment to set-up a training room at McKesson — is contested.
While performing his duties at McKesson, Jackson lodged complaints about both the professionalism and the work quality of his fellow employees. These complaints prompted Bill White to assign him a Quality Assurance duty, pursuant to which Jackson could further examine improperly completed work and then discuss with White how to best correct the problem. Jackson also complained about the outcome of his performance review, which White thereafter revised twice at Jackson's request. Finally, Jackson claims he requested a pay raise after discovering a disparity between his salary and that of a peer.
Another disagreement between the parties arises over the nature and extent of Jackson's complaints about McKesson's failure to pay him overtime and more particularly McKesson's response. Jackson points to the following as evidence of retaliation by McKesson: First, it is undisputed that during a meeting, Bill White inquired about whether Jackson had been recalled for military service. During the same meeting, White commented about the difficult job market for computer support positions. Second, White forwarded to Jackson an email written by another employee regarding a mistake by one of the computer staff with the subject line "Shoddy work." Finally, although Jackson does not dispute that his performance review was revised at his own request, he contends that the revisions were done in an attempt to discredit him.
Jackson's active tenure at McKesson ended on or about October 9, 2003, when he went on short-term disability leave. During his leave, Jackson received psychological therapy for what he claims was work-related stress. On February 6, 2004, Jackson notified McKesson that he was cleared by his doctor to return to work, but — on the advice of the same doctor — he would not do so. Jackson contends that he was forced to resign from McKesson as a result of the "unresolved work-related problems" cited by his doctor.
B. Procedural History
On June 20, 2003, Jackson filed a complaint against McKesson comprised of four counts: (1) failure to pay overtime pursuant to the FLSA; (2) failure to keep time records in accordance with the FLSA; (3) retaliation against Jackson in response to his complaints regarding overtime, in violation of the FLSA; and (4) a violation of the MMWL. McKesson moved to dismiss the second and third counts of the complaint. Jackson opposed the motion only as to the third count.
On August 20, 2003, I dismissed the second count but declined to dismiss the third. McKesson answered the complaint on September 2, 2003, and later moved to amend its answer, a motion I allowed. On April 2, 2004, Jackson filed an assented to motion to amend the complaint. McKesson filed the present motion for summary judgment on June 1, 2004.
II. DISCUSSION
A. Standard of ReviewSummary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c). A party seeking summary judgment must make a preliminary showing that no genuine issue of material fact exists. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, 515 U.S. 1103 (1995). Once the movant has made such a showing, the nonmovant must point to specific facts demonstrating that there is, indeed, a trialworthy issue. Id.
A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law," Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000), and a "genuine" issue is one supported by such evidence that "a 'reasonable jury, drawing favorable inferences,' could resolve it in favor of the nonmoving party." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Smith v. F.W. Morse Co., 76 F.3d 413, 427 (1st Cir. 1996)). "[C]onclusory allegations, improbable inferences, and unsupported speculation," are insufficient to establish a genuine dispute of fact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
B. Exemption from Overtime
Pursuant to the FLSA, employers must pay overtime to any employee who works more than forty hours per week. 29 U.S.C. § 207(a). Employees working in a "bona fide executive, administrative or professional capacity," however, are exempt from this protection and therefore not entitled to overtime pay. 29 U.S.C. § 213(a)(1). Congress has authorized the Secretary of Labor to enact regulations defining and interpreting these terms,see 29 U.S.C. § 213(a)(1), and the Secretary has done so. See, e.g., 29 C.F.R. § 541.2 [541.200] (defining "administrative capacity"). The Secretary's regulations "must be given controlling weight unless they are found to be arbitrary, capricious, or contrary to statute," while the Secretary's interpretations may be cited by courts only as a form of guidance. Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1070 (1st Cir. 1995).
For present purposes, the requirements imposed by the MMWL are the same as those under the FLSA. Therefore, as the FLSA claim goes, so does the MMWL claim. See 455 C.M.R. § 2.02(3) ("The terms 'bona fide executive, or administrative or professional person' in [Mass Gen. Laws ch.] 151, § 1A(3), shall have the same meaning as set forth in Part 541 of Title 29 of the U.S. Code of Federal Regulations.").
The statute also exempts:
(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is
(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
(D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and
who in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour.29 U.S.C. § 213(a)(17).
The defendant does not argue that the plaintiff is covered by this exemption and, in any event, would have a difficult time prevailing on this point. The statute does not require that all computer professionals be exempted. Finding that it does would be "an understandable mistake, one that arises from the common perception that all jobs involving computers are necessarily highly complex and require exceptional expertise." Martin v. Indiana Michigan Power Co., 381 F.3d 574, 580 (6th Cir. 2004). "[T]he regulations provide that an employee's primary duty must require 'theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering' not merely 'highly-specialized knowledge of computers and software.'"Id. (emphases in original). Like the employee in Martin, the plaintiff here "is merely ensuring that the particular machine is working properly according to the specifications designed and tested by other . . . employees." Id. at 581 ("Maintaining the computer system within the predetermined parameters does not require 'theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering."); see also Opinion Letter, Wage and Hour Div., 1999 WL 33210907 (Dep't Labor Nov. 5, 1999) (advising that a "senior network administrator/project manager" with responsibilities that included overseeing personnel likely does "not qualify . . . for the professional exemption as a 'computer' professional employee").
The Department of Labor has recently revised its regulations. The numbering throughout this opinion references the previous numbering used by the parties in their briefing and contains the prescriptions applicable to this action. Wherever possible, the revised numbering is referenced in brackets following the previous numbering.
Because the FLSA was enacted by Congress as a remedial measure, courts must narrowly construe its provisions against the employer. See id. (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)); Douglas v. Argo-Tech Corp., 113 F.3d 67, 70 (6th Cir. 1997); Turner v. Human Genome Sciences, Inc., 292 F. Supp. 2d 738, 744 (D. Md. 2003). Therefore, the burden rests on the employer to prove that the employee's position is exempted from the FLSA's overtime requirements. See Reich, 44 F.3d at 1070.
The test applicable to employees, like Jackson, who make more than $250 per week provides an employee is exempt if (1) his "primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operations of the employer or the employer's customers" and (2) "includes work requiring the exercise of discretion and independent judgment." 29 C.F.R. § 541.214 [541.200]. For the reasons set forth below, I find that there is a genuine issue of material fact concerning whether the plaintiff was due overtime pay.
One of two tests — a "short test" and a "long test" — is used to determine whether an employee qualifies for the administrative exemption under 29 C.F.R. § 213. The salary of the employee determines which test is applied, and the parties agree that the short test is applicable here because Jackson earned more than $250 per week. 29 C.F.R. § 541.214 [541.600].
Although the Defendant separates out the "office work" part of the guidelines from the "directly related" part in arguing its motion, I will address the issue in an integrated manner. See, e.g., Turner v. Human Genome Sciences, Inc., 292 F. Supp. 2d 738, 744-46 (D. Md. 2003) (applying the administrative exemption as a two-prong inquiry and labeling the first prong as "primary duty directly related to managing policies or general business operations").
The newly revised regulations, in addition to raising the exemption salary cut-off, modify the definition of an administrative employee. These changes are not relevant to the analysis herein.
1. Primary Duty Directly Related to Business Operations
The plaintiff argues that because he spent the vast majority of his time on "trouble tickets," it was his primary duty. Rather than contest this point, the defendant instead argues that such work is exempt under the statute because it is "office work." The issue of whether the plaintiff's work was office or nonmanual work is certainly a factor to be considered; and, the question is played out in the parties' papers in the debate regarding the degree to which the plaintiff used tools on the job. While the defendant claims the plaintiff's use of tools was "negligible," the plaintiff responds that he "was constantly using tools."
The applicable regulations do "not completely prohibit the performance of manual work by an 'administrative' employee." 29 C.F.R. § 541.203(b). And while there may be a genuine dispute regarding the degree to which the plaintiff used tools on the job, it is not dispositive here. The defendant concedes that troubleshooting computer problems was the plaintiff's primary duty, taking up the vast majority of his time. It has not been sufficiently shown that such work is exempted under the statute. Therefore, to the extent the plaintiff used tools on the job, his position simply appears that much less administrative; how much less will be a question for the jury.
The newly revised regulations do not appear to contain text that resembles this provision closely enough to cross-reference here.
It cannot be said that simply because the plaintiff worked in an office and used tools minimally, his work is office work directly related to the company's business operations for purposes of the statute. In this day and age, such an argument would eliminate broad categories of covered employees from overtime protection based on an overly cabined interpretation of the statute and the accompanying regulations. See 29 C.F.R. § 541.203(a) ("Persons employed in the routine operation of office machines are engaged in office work within meaning of § 541.2 although they would not qualify as administrative employees since they do not meet the other requirements of § 541.2 ).") (emphasis added).
The newly revised regulations do not appear to contain text that resembles this provision closely enough to cross-reference here.
In continuing to argue that the plaintiff's position is exempt, the defendant next emphasizes the importance the "trouble ticket" work plays in the functioning of the company. Standing alone, the importance of the work does not inexorably lead to the conclusion it is administrative. The regulations make clear that
[t]he phrase ["directly related to management policies . . ."] includes a wide variety of persons who carry out major assignments in conducting the operations of the business, or whose work affects business operations to a substantial degree, even though their assignments are tasks related to the operation of a particular segment of a business.
29 C.F.R. § 541.205(c). Accordingly, only those employees whose work was of "substantial importance to the management policies or general business operations" are exempt. 29 C.F.R. § 541.205(a) [541.201].
The regulations have been substantially revised. Although the provisions are quite different, § 541.201 provides what seems to be the closest parallel to the old regulation.
On this score, the defendant cites the plaintiff's resolution of major trouble tickets as evidence of his administrative role, claiming his work "was in the nature of a technical consultant or advisory specialist." But McKesson's contentions are in essence an argument that because the proper performance of Jackson's job prevented or minimized significant deleterious consequences of computer-related problems, he is exempt under the statute. Other than the potentially significant consequences that would result from mistakes by the plaintiff, the defendant offers no other quality that would make the resolution of trouble tickets administrative. In McKesson's estimation, this chain of consequence is sufficient to qualify the plaintiff's duties as "significant administrative work." As a matter of law, however, it is not.
To expand the exemption as the defendant urges would be a misinterpretation of the statute and regulations. As noted in a recent Sixth Circuit decision addressing whether a similar computer position was administrative, "[t]he regulations . . . explain that it is the work itself that must be of substantial importance — not the size of the consequences or loss that may result from improper performance of the employee's duties."Martin v. Indiana Michigan Power Co., 381 F.3d 574, 583 (6th Cir. 2004); see Dalheim, 918 F.3d at 1231 ("The Secretary's interpretations specifically recognize the fact that a worker's poor performance may have a significant profit-and-loss impact is not enough to make that worker an exempt administrator.").
The analysis is more subtle than defendant's argument would allow. As the Martin court recently observed regarding a comparable job position:
When people at the plant have problems with their computers, they call the help desk where the help desk employees put the problems into a database as "help desk tickets," which Martin prints out. Martin responds to these help desk tickets. He goes to the location indicated where he attempts to determine the nature of the problem, to "troubleshoot" it to determine how to proceed, and to repair the problem if possible. Martin installs software, such as Microsoft Office 97, on individual workstations. He troubleshoots Windows 95 problems and installs software patches.381 F.3d at 577. As did Jackson, the employee in Martin referred problems he could not fix to his supervisor. Id. He also did "not recommend the purchase of any equipment, hardware, or software, although [his supervisor] consider[ed] [his] comments . . . 'valuable' . . ." Id.; see Jackson Dep. at 152 ("My role was to go out into the Web sites and investigate what hardware was available and make my recommendations either to other teammates or to Bill White who did the final approval for the purchases."). As Jackson had for McKesson, the employee in Martin also completed other assignments, including relocating workstations and installing cable for the computer network. Martin, 381 F.3d at 577.
The Martin court added that the employee had "no computer certification and no degree beyond high school," worked in a "workshop," and wore blue short-sleeve work shirts on the job. Id. at 578.
Applying the administrative exemption regulations to the job at issue, the Martin court found that the employee's duties were not "directly related to management policies or general business operations of the employer," as required by the regulations.Id. at 582. The employee was "in no way involved in 'advising the management, planning, negotiating, representing the company, purchasing, promoting sales, and business research and control.'"Id. And, as already noted, the court stated that "[t]he regulations . . . explain that it is the work itself that must be of substantial importance — not the size of the consequences or loss that may result from improper performance of the employee's duties." Id. at 583. Much the same could be said here. As a result, a genuine issue of fact exists as to whether Jackson's primary duty was directly related to business operations.
2. Independent Judgment and Discretion
There also exists a genuine issue of fact regarding whether the plaintiff's duties required the "exercise of discretion and independent judgment." In contending that the job did require the use of discretion, the defendant again falls into a familiar trap, this time one that the regulations anticipate: "An employee who merely applies his knowledge in following prescribed procedures or determining which procedures to follow . . . is not exercising discretion and independent judgment within the meaning of § 541.2." 29 C.F.R. § 541.207(c)(1) [541.202(e)]. By emphasizing that "there is not a single correct way to handle trouble tickets" and that the plaintiff handled many of them without supervision, the defendant conflates skill with discretion and independent judgment, thereby failing to heed the statute's warning regarding what is necessary to establish the latter traits.
This section of the regulations also specifically address work with computers, providing in pertinent part:
Every problem processed in a computer first must be carefully analyzed so that exact and logical steps for its solution can be worked out. When this preliminary work is done by a computer programmer he is exercising discretion and independent judgment. A computer programmer would also be using discretion and independent judgment when he determines exactly what information must be used to prepare the necessary documents and by ascertaining the exact form in which the information is to be presented. Examples of work not requiring the level of discretion and judgment contemplated by the regulations are highly technical and mechanical operations such as the preparation of a flow chart or diagram showing the order in which the computer must perform each operation, the preparation of instructions to the console operator who runs the computer or the actual running of the computer by the programmer, and the debugging of a program.
29 C.F.R. § 541.207(c)(7).
The employer in Turner v. Human Genome Sciences, Inc., made the same error of interpretation:
While Plaintiffs certainly utilized their own knowledge and skill to solve computer problems, their primary duties did not involve discretion or independent judgment as required under the regulations. In troubleshooting software and network problems, Plaintiffs typically followed a systematic approach or referred the problem to more skilled technicians. . . . The evidence does not establish that Plaintiffs were involved in the making of any policy or had latitude to work or act without supervisory approval, or on behalf of the company, with regard to matters of any consequence.292 F. Supp. 2d 738, 747 (D. Md. 2003). Likewise, in Burke v. County of Monroe, 225 F. Supp. 2d 306 (W.D.N.Y. 2002), the computer employees "performed highly-skilled work when troubleshooting problems, but this is not evidence of discretion and independent judgment." Id. at 320. Nor is it here.
The Burke court went on to say that the exercise of discretion "implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance." Burke v. County of Monroe, 225 F. Supp. 2d 306, 321 (W.D.N.Y. 2002).
In contrast, the plaintiff in Koppinger v. American Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio 2003) — a case relied upon by the defendant — had much more "latitude to work or act without supervisory approval . . . on behalf of the company, with regard to matters of consequence." And at first blush, the defendant's comparison to Koppinger would seem apt not only on the issue of discretion but also on the "primary duty" question addressed above. The plaintiff in Koppinger worked at "maintaining, upgrading, and administering the computer system" and "some of his work may be considered manual." Id. at 802. The position in Koppinger, however, is distinguishable from Jackson's. In Koppinger, the plaintiff "was a one-man department," Id. at 799, and despite his more manual duties, which included installing software and hardware, the court found that the "prominence of the problem-solving, planning, and purchasing duties" involved in his job exempted the position.Id. at 802. There is no similar showing of discretion and independent judgment here.
The defendant also attempts to draw a comparison with the unpublished Sixth Circuit opinion Lutz v. Ameritech Corp., 2000 WL 245485 (6th Cir. Feb. 23, 2000). In Lutz, however, the plaintiff "assess[ed] the needs of clients, develop[ed] installation plans for access to the intra-company network, and coordinat[ed] with various departments to arrange installation and ensure[d] that plans are implemented." Lutz, 2000 WL 245485, at **3. Although similar in that these are computer-related duties, the comparison is strained. From the record, the plaintiff apparently did not engage in the sort of planning and organizing exercised by the employee in Lutz.
Although not controlling, the Secretary of Labor's interpretations of the statute and regulations provide considerable guidance as well. In one Opinion Letter, the Secretary addressed the position of a
senior network administrator/project manager [who] assists the User Support Manager with projects; assumes responsibility for network activities, and oversees other Information Technology Department (ITD) personnel; performs computer hardware, software, Novell 4.11 and other operating system installations, tuning, troubleshooting and system integration of related components; maintains assigned priorities and prepares status reports; schedules work pertaining to network problems and software upgrades; assists the User Support Manager with training and mentoring of staff; and researches and assists the User Support Manager with network problem solving.
Opinion Letter, Wage and Hour Div., 1999 WL 33210907 (Dep't Labor Nov. 5, 1999). The Secretary concluded:
The senior network administrator/project manager, as described, does not appear to meet either the administrative exemption or the professional exemption as a 'learned professional' because, among other concerns, the performance of his/her job does not require the exercise of discretion and independent judgment as required by the regulations.Id.
Even a position where the "primary duty is to identify computer solutions to fit the need [sic] of a variety of local businesses . . . does not meet the duties requirements for any of the exemptions," in part because "the employee does not design, create or modify the systems or programs." Opinion Letter, Wage and Hour Div., 2001 WL 1558967 (Dep't Labor May 11, 2001).
Although it is clear from the record that Jackson is skilled, a reasonable jury could certainly find — as the plaintiff contends — that his duties did not require the "exercise of discretion and independent judgment" of the sort exempted by the regulations.
C. Retaliation
The plaintiff also claims the defendant retaliated against him in violation of the FLSA. An employer is prohibited from penalizing an employee who exercises his rights under the FLSA.See 29 U.S.C. § 215(a)(3). Despite the many manifestations an employer action might take, retaliation claims have a core set of elements. See Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1996). "They comprise, at a minimum, a showing that (1) the plaintiff engaged in statutorily protected activity, and (2) his employer thereafter subjected him to an adverse employment action (3) as a reprisal for having engaged in the protected activity."Id. As set forth below, there is no indication in the record that Jackson was subjected to an adverse employment action or for that matter that any adverse action was caused by the plaintiff's involvement in protected activity; and, as a result, his retaliation claim must fail.
The subsection provides:
(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person —
* * *
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]29 U.S.C. § 215(a)(3).
As to the issue of whether Jackson "engaged in statutorily protected activity," apparently he raised the issue of overtime with a "higher level manager" and believes he sent an email on the subject to Bill White's immediate superior. In addition, he was told by an employee in Human Resources that he was designated exempt. The defendant has not shown — nor, for that matter, has it attempted to show — that the plaintiff failed to "engage in statutorily protected activity."
It is worth noting that the First Circuit does not require that one file an official complaint with the Department of Labor to be covered by the FLSA anti-retaliation provision. See Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 43 (1st Cir. 1999) ("[W]e . . . conclude that the animating spirit of the Act is best served by a construction of § 215(a)(3) under which filing of a relevant complaint with the employer no less than a court or agency may give rise to a retaliation claim."). The Valerio court left "for another day whether combined oral or written complaints, or alleged complaints of a wholly oral nature, allow invocation of the protections of § 215(a)(3)." Id. at 42 n. 4; see Claudia-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 103 (1st Cir. 2004) (noting that the First Circuit, "although not requiring an employee to file a formal complaint with a court or agency to receive FLSA protection, does require an employee to take action beyond mere 'abstract grumbling'") (quotingValerio, 173 F.3d at 44). It is, however, unnecessary to resolve the question of whether the plaintiff's complaints were sufficient to trigger the protection of the FLSA, as I find that the defendant has demonstrated as a matter of law that the plaintiff did not suffer an adverse employment action as a reprisal from having done so.
It is worthwhile to preface this discussion by recognizing that many workplaces are not ideal surroundings. But falling short of optimal is not in itself a violation of federal labor laws. See Blackie, 75 F.3d at 725 ("Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate the act or omission to the level of a materially adverse employment action."). The evidence must show something considerably more. While, the conditions in the plaintiff's workplace may not have suited him, the inquiry I must make is an objective one. See id., at 725.
More concretely, to establish an adverse employment action "[t]ypically, the employer must either (1) takes something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service." Id. at 725.
The plaintiff claims that the defendant threatened to retaliate against him, thereby violating the FLSA. As I noted in my order on the motion to dismiss, "[u]ndoubtedly, threats of retaliation are also prohibited by [sec. 215], as are efforts to obtain withdrawal of FLSA claims by threats of retaliation." Soler v. G U, Inc., 690 F.2d 301, 302-03 (2d Cir. 1982). In order to survive this motion for summary judgment, however, there must be some indication in the record that there is a causal connection between the threat and the protected activity. As will be noted below, in his deposition testimony, Jackson does not connect the comments by White to his overtime complaints. In fact, Jackson testified that White's comment regarding the difficult job market took place in a meeting which dealt with work performance issues, not any FLSA-protected complaints. In addition and in contrast to the situation in Soler — where the plaintiffs sought enforcement of the FLSA through the issuance a preliminary injunction preventing further threats by the defendants — the defendant here is no longer in a position to carry out the alleged threats against the plaintiff. Alleged threats may, however, act as potential evidence of an adverse employment action — here, an alleged constructive discharge.
To establish a constructive discharge, the evidence must "show that [the employer] imposed 'working conditions so intolerable that a reasonable person would feel compelled to forsake his job rather than to submit to looming indignities.'" Simas v. First Citizens' Federal Credit Union, 170 F.3d 37, 46 (1st Cir. 1999) (quoting Vega v. Kodak Carribean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993)). In analyzing this issue, I must apply an objective standard, "focus[ing] on 'the reasonable state of mind of the putative discrimatee.'" Greenberg v. Union Camp Corp., 48 F.3d 22, 27 (1st Cir. 1995) (quoting Calhoun v. Acme Clevelan Corp., 798 F.2d 559, 561 (1st Cir. 1986)). Doing so, I find that no reasonable jury could find that the plaintiff was constructively discharged.
The claim in Simas came under the Federal Credit Union Act. Nevertheless, the court noted a number of anti-retaliation provisions (not including the FLSA) that impose the same threestep test as the FLSA to retaliation claims. 170 F. 3d at 43-44.
The plaintiff attempts to paint a picture of an intolerable work environment based on what he considered harassing comments by his supervisor. For instance, the plaintiff claims that during a meeting where he raised work-related concerns, Bill White said: "Are you sure you want to keep bringing this up? You know, the job market isn't that good; it's hard to find tech jobs out there." (Jackson Dep. at 201.) The plaintiff contends that Bill White made similar comments at other times, but does not specify the context of these other occurrences. (Id.; see also id. at 212.)
In the same meeting referenced above, the issue of the plaintiff's possible recall into military service was raised. The plaintiff paraphrased that portion of his conversation with White in his deposition: "So you were supposed to be recalled to active duty? I'm like, yeah. And you weren't, right? I said no. You weren't recalled to active duty? No. And then he yelled out, Well, you weren't, were you?" (Id. at 205.) The plaintiff believed White's comment was "very personal," and an accusation that he lied about possibly being recalled to active military duty. (Id. at 207, 209.)
According to the plaintiff, whenever he would raise a complaint, Bill White would tell him that he "need[ed] to stop going above me." (Id. at 213.) In addition, to support his contention of an intolerable work environment, the plaintiff points to White's forwarding him an email with the subject header "Shoddy work." The email was written by another McKesson employee regarding a mistake made by one of the computer employees and White inquired whether Jackson knew anything about the situation. Finally, the plaintiff suggests that White and others sabotaged his work, though offers no specific examples.
The plaintiff also contends that the revisions to his performance review evidence retaliation. He admits, however, that the review was revised at his own request. In addition, the initial review — although not favorable in the plaintiff's estimation — was objectively favorable, finding that the plaintiff exceeded expectations on the trouble ticket work and met expectations in other aspects of his job. The plaintiff believes the trouble ticket work should have been weighed more heavily in the overall evaluation because it was how he spent the majority of his time. Bill White disagreed, believing that the position should be reorganized with a greater balancing of priorities. While Jackson may have been unhappy with this change and with the nature of his realigned duties, it cannot be said that this created an objectively intolerable work environment. (See generally, Jackson Dep. at 213-18.)
The FLSA protects against retaliation for exercising rights protected by the statute. Therefore, we are concerned here with complaints regarding overtime, and not those concerning the work quality of Jackson's peers. Nevertheless, even giving the plaintiff the benefit of every doubt, interpreting the verbal and written communications from White to be part of a concerted effort to prevent him from exercising his rights, there is not a sufficient basis to establish constructive discharge. Such actions might carry more weight if the plaintiff had been discharged and was attempting to demonstrate the reason. Instead, the plaintiff is arguing that he was constructively discharged, that, in essence, the unpleasant communications and alleged actions themselves are the very reason he was forced to resign.
Without more, it cannot be said that the cited occurrences are sufficient to create an objectively intolerable workplace. See, e.g., GTE Products Corp. v. Stewart, 421 Mass. 22, 34 (1995) ("A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim. Thus, evidence of a single unfavorable performance review or even of a demotion generally will not be deemed sufficient to support a claim."). "[M]ere dissatisfaction with the nature of assignments, criticism of an employee's performance, and dissatisfaction with compensation have been held insufficient to establish a triable question of fact on the issue of constructive discharge." Id. at 35 (citing Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993). The record provides no basis to find that Jackson had any objective reason to feel anything more than "mere dissatisfaction" about his job.
It should be noted that Jackson never discussed with anybody at McKesson the possible resolution of his work-related problems during his leave, as "[i]t was assumed that [he] was going to go back to work for McKesson after disability leave." (Jackson Dep. at 243.) Nor did Jackson raise his concerns with McKesson after he was cleared to return.
This is not to imply that the work environment was ideal; and, I recognize that the plaintiff's subjective reaction to it may have been reasonable. In addition, as an objective matter, the comments and actions of Bill White — if they fell within a larger panoply of harassing conduct — could have acted as further evidence of an objectively intolerable workplace. See, e.g., Flamand v. Amer. Int'l Group, Inc., 876 F. Supp. 356, 369 (D.P.R. 1994) (finding a triable issue of constructive discharge where the plaintiff "was subjected to a continuous pattern of actions that made his working conditions intolerable" including "constant comments that the company might be closing down" one of the employment sites). But the plaintiff here offers only isolated events to establish the foundation for his retaliation claim and asserts only in the most conclusory fashion that they constituted "a continuous pattern of actions that made his working conditions intolerable." Id. These events alone cannot withstand the weight of his argument. In sum, to survive the present motion for summary judgment, a jury must be able to find the environment at McKesson so intolerable that the plaintiff had no choice but to resign. I find it could not.
Even if I were to find that Jackson suffered from an adverse employment action, that does not end the inquiry. There would also have to be a showing that such action was "a reprisal for having engaged in prosecuted activity." Blackie, 75 F.3d at 722. Nothing in the record permits a finding that there was any causal link between his alleged complaints regarding overtime pay and such action by the defendant. Jackson bases his case on a limited number of comments made by his supervisor, White. According to Jackson's own deposition testimony, however, the specifically cited comments occurred in the context of a meeting regarding work performance issues, not Jackson's overtime concerns. Jackson has presented no facts that could lead a reasonable jury to conclude that any adverse employment action taken by the defendant was a direct result of Jackson's protected activity. The picture painted by Jackson is one of a boss he had difficulty working with, not one of the defendant, McKesson, retaliating against him for complaints regarding overtime.
III. CONCLUSION
For the reasons set forth more fully above, the motion for summary judgment as to the FLSA and MMWL overtime claims is hereby DENIED. The motion for summary judgment as to the claim of retaliation in violation of the FLSA is hereby GRANTED.